D.C. Circuit Court Operates With Four Vacancies

The federal appeals court in Washington, D.C. is second only to the United States Supreme Court in terms of the important cases it decides. But the court, known as the D.C. Circuit, has been limping along with four vacancies. President Obama's first nominee recently withdrew after two Senate filibusters blocked her path. The White House is hoping its other nominee will have an easier ride.

Here's NPR's Carrie Johnson.

CARRIE JOHNSON, BYLINE: Unlike a lot of judicial candidates, Sri Srinivasan has a record that stretches back for decades. He clerked for former Justice Sandra Day O'Connor and went on to argue before the Supreme Court two dozen times, in cases involving gay marriage, religious freedom and corporate rights.

Srinivasan, who's considered a moderate, also made some surprising connections along the way. One of them is Texas Republican Ted Cruz. The new senator has been a thorn in the side of some of his colleagues this year. But Cruz was all smiles at yesterday's Senate Judiciary nomination hearing for Srinivasan.

SENATOR TED CRUZ: I would note that you and I have known each other a long time, that we clerked together on the Fourth Circuit Court of Appeals and we have been friends a long time. So I am hopeful that our friendship will not be seen as a strike against you by some.

HATCH: And as of right now, some of these things bother me but I want to support you.

JOHNSON: So what's the hold-up? The current court has four judges appointed by Republicans and three by Democrats. New York Democrat Charles Schumer says he can explain the delay.

SENATOR CHARLES SCHUMER: Frankly, I think the hard right wants to use the D.C. Circuit to undo all kinds of government decisions.

JOHNSON: To hear Republicans on the Judiciary Committee tell it, the White House is to blame for moving too slowly to nominate judges for the D.C. Circuit and other federal courts.

Iowa Senator Charles Grassley.

SENATOR CHARLES GRASSLEY REPUBLICAN, IOWA: I would note that we hear a lot about the vacancy rates. There are currently 86 vacancies for federal courts. But of course you never hear the president mention the 62 vacancies that have no nominees that we can't possibly act upon in the United States Senate until they get up here.

SENATOR PATRICK LEAHY: If we're concerned about vacancies...

JOHNSON: Senate Judiciary Chairman Patrick Leahy, a Democrat from Vermont, weighed in. Leahy pointed out that Republicans have been delaying up or down votes on 13 judge candidates who got no opposition in the committee.

LEAHY: We could easily confirm all these non-controversial judges that are on the floor. They've been held up for month after month after month after month after month.

JOHNSON: Most of the hearing turned into a partisan dispute about how busy the D.C. Circuit judges really are. Democrats say the judges are overloaded with complex financial, environmental and national security cases. But Republicans say two of the 11 seats on the court should go to other, busier courts and they introduced legislation yesterday to try to make that happen.

When the talk finally got back around to Srinivasan, who'd be the first South Asian to serve on a federal appeals court, he cracked jokes about plying his twins with candy and toys for sitting through the hearing, and batted away questions from Senator Hatch and others about his long record as an advocate.

SRINIVASAN: I think part of having a judicial temperament is knowing when not to talk, and this may be one of those occasions.

(LAUGHTER)

HATCH: Now, are you referring to me or you?

SRINIVASAN: No me, me. Just me.

(LAUGHTER)

JOHNSON: Democrats on the committee say if he doesn't get confirmed, the whole process is broken and they'll have to consider changing the Senate rules.